Monday, 21 August 2017

Today’s post looks at the news that Johnson & Johnson (J&J), the massive
pharmaceutical, medical devices and consumer goods company, has been ordered to
pay a massive $417 million to a claimant regarding the company’s failure to ‘adequately
warn consumers’ about the cancer-related risks of one of its most famous
products – talcum powder. In this post the focus will be on the string of
claims that have resulted in awards for the claimants against J&J and what
it may mean for the company and its reputation.

Simply put, scandal is never far away from this particular
field of medical science and its connection to the public. There have been a vast
number of cases over the years which can be described as ‘corporate
scandals’, with many becoming etched into the public consciousness. In the U.K.
(although the effects were certainly not restricted to the U.K.), perhaps the
most famous corporate scandal in relation to the medical sciences field was the
case of those affected by the morning sickness drug Thalidomide.
The effects of the drug, which after retrospective testing 50 years later was
found to be caused by a component of the drug preventing
the growth of new blood vessels in embryos, included the child suffering
from a number of deformities, with it being stated that the stage at which the
pregnant woman took the pill determined
the nature of the deformity suffered by the child. This horrific instance
of corporate
crime and failure, which casts a long
and persistent shadow upon society, is just one of a number of unfortunately
memorable instances of corporate failure in this field. In France, the Poly
Implant Prothése (PIP)
scandal which involved the switching of medical-grade silicone for breast
implants with industrial-grade silicone resulted in nearly 50 ruptured
implants, a wave of litigation and the dissolution of the firm. In the United
States, the recent
case of the New England Compound Centre and its role in the widespread
dispersion of medicine that, because of severely lax standards, resulted in
over 700 people being infected with Meningitis with 64 people dead. A recent
case against the owner of the centre – Barry J. Cadden – resulted in his acquittal
on 25 counts of second-degree murder, but conviction for racketeering and
fraud, for which he was sentenced to 9
years in Prison. These clearly are just some of many examples of corporate
transgressions that have led to drastic effects upon public health. If we look
at J&J however, we see somewhat
of a mixed situation.

In the 1980s, J&J were widely praised for their reaction
to a similar situation. In 1982 in Chicago, 7
people died as a result of taking pain-relieving ‘Tylenol’ capsules that
actually contained potassium cyanide. Yet J&J, who has manufactured the
drug, immediately recalled 31 million bottles of the drug and replaced them in
a safer tablet-form – it is not known for certain how the drugs came to be
tampered with. The company earned
praise for its rapid response and forthright sharing of information with
the public, an approach which has been discussed
widely when looking at crisis-management strategies. Yet, if this period
represented a positive view of J&J (relatively speaking), then recent
events paint a very different picture. The products in question contain talc, a
mineral
which is made of magnesium, silicon and oxygen. The mineral is heavily used
in a number of J&J products for its ability to absorb moisture – popular products
include baby powder and facial powders. However, the American Cancer Society
confirms that in its natural form ‘some
talc contains asbestos’ which, even though the use of asbestos has been
widely prohibited, has still seen the link between the use of talc-based
products and cancer claimed and examined on a near-consistent basis. In the
early 1970s a possible
link between talc and ovarian cancer was established by British scientists,
which as a study was followed by further studies in the ensuing decades that claimed
women were three
times more likely to contract ovarian cancer when they used talc-based
products near their genitals. Although J&J were made aware of the associated
risks by their suppliers in 2006, the company refused to attach warnings over
its usage and that is the central claim to litigation concerned with this
issue. In 2006
a federal jury found that J&J should
have warned consumers of the risks (without awarding damages), and in recent
years the company is facing a wave of
litigation. In 2016 the company was ordered to pay $72 million to the family of
Jacqueline Fox, $55 million to Gloria Ristesund, $70 million to Deborah
Giannecchini, and in 2017 $110.5 million to Lois Slemp and now $417 million to
Eva Eheverria; it is suggested that over 1000
women will claim against the company. The names of the women who have been
awarded damages was not listed to ignore the details of their individual cases
(far from it) but to highlight the remarkable situation that, rather
incredibly, just keeps developing. The company responded by stating that ‘we
will appeal today’s verdict because we are guided by the science, which
supports the safety of Johnson’s Baby Powder’, with the company using
tried-and-tested legal defences like the protection offered by the U.S. Supreme
Court that states that lawsuits must be confined
to states where the alleged wrongdoer i.e. J&J is based. Yet, the
recent ruling and the sheer size in relation to previous awards surely hints at
a change in the offing.

Ultimately, the trajectory of awarded damages may reveal for
us the eventuality that J&J seemingly does not want to face: it is far from
inconceivable that talc-based products will be wholly, or mostly prohibited. This
case represents a slightly different case in that the divergence in medical
opinion and evidence is allowing the scandal to continue unabated, whereas
other scandals were arguably much clearer. However, it is contested here that
this scandal is just as clear, and the result of the scandal should be
forthcoming immediately: the correlation, at the rate it stands at now, between
the use of talc-based products and ovarian cancer, is more than enough to take lasting action. The question for
regulators across the world – this is not just an American problem – is how
many people, and women mainly, have to die or contract ovarian cancer before
serious action is taken? Another thousand? Ten thousand? The losses that
J&J will incur with the prohibition of one of their famous products should
have no bearing whatsoever on the
decision to take action and prohibit the sale of talc-based products;
unfortunately, the power of the corporation is well and truly at play in this
case.

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